Rostyslaw J. Smyk

Ross Smyk focuses his practice on insurance coverage, insurance bad faith, and insurance-related commercial litigation.  In almost 25 years of insurance coverage practice, Ross has provided coverage opinions and litigated coverage disputes in a number of jurisdictions on a wide variety of insurance coverage issues, including issues arising under Commercial General Liability, Commercial Umbrella, Professional Liability, Errors Omissions, and Commercial Auto policies.  His opinions have addressed not only threshold questions such as the definitions of "occurrence" and "property damage," but also complex disputes arising under work product exclusions, trigger of coverage, allocation of loss among insurers, horizontal exhaustion, targeted tender, applicability of "additional insured" coverage, and breaches of conditions precedent to coverage.  Ross also has extensive experience with coverage questions arising under "claims made" policies including: application of related acts provisions, prior notice language, and timely reporting issues. 

Ross's opinion work has often resulted in his representing his clients' interests at mediations where favorable and cost-effective resolutions of complex matters were reached.  In coverage litigation matters, Ross has been able to secure judgment as a matter of law on behalf of his clients on numerous occasions, achieving an exemplary won/lost record in the process. 

In his insurance-related commercial litigation work, Ross has represented both corporate and private clients in a wide variety of matters, including broker liability claims and claims arising out of insurer liquidation.  His case results include:

• Brown & LaCounte v. Westport Ins. Corp.U.S. Court of Appeals for the Seventh District.  Federal Court of Appeals held that insurer had no duty to defend claim brought by Native American tribal government for reimbursement of legal fees paid to insured over several years.  At Ross' urging the District Court entered summary judgment in favor of Ross' insurer-client based upon the policy's "illegal profit" exclusion.  On appeal, Ross successfully defeated arguments by the insured that the "in fact" language in the exclusion did not foreclose the possibility of an indemnity obligation.  Rather, the Federal Court of Appeals adopted Ross's argument that no duty to defend could exist based upon the allegations of the underlying complaint that the tribal government's payment of legal fees to the insured was against federal law.

• Gregory Alan Scott v.Atlas Financial Services, Inc. U.S. Court of Appeals for the Fifth Circuit.  Federal Court of Appeals summarily affirmed District Court's summary judgment in favor of grandparent holding company after panel defense counsel sued the holding company for breach of contract.  Plaintiff alleged that his contract was not with the subsidiary insurance companies, but rather the grandparent holding company.  Ross successfully argued that the plaintiff could not prove any of the elements of a contract between himself and the grandparent holding company.  Ross also successfully secured an outright dismissal of plaintiff's tort claims against the holding company for failure to state a claim, as well as a dismissal of plaintiff's claims against the corporate officers in their individual capacities for want of personal jurisdiction.

• Maynard v. Westport Ins. Co., U.S. Court of Appeals for the Fourth Circuit.  Federal Court of Appeals summarily affirmed District Court's grant of summary judgment to Ross's insurance company client.  The court rejected as a matter of law the judgment creditor's arguments that Ross' client had waived its defenses to coverage and/or should be estopped from asserting them.  Ross defeated the judgment creditor's arguments that summary judgment was inappropriate because there existed factual questions as to consistency of insurer's positions throughout underlying tort litigation.

• K&B Plastics Industries v. Lincoln General Insurance Co.  Superior Court of New Jersey, Union County.  Superior Court ruled that a shipper of goods was not entitled to coverage as a matter of law pursuant to omnibus clause of Business Auto Policy's liability coverage. The shipper argued that coverage should apply under the "complete operation" doctrine.  Ross defeated these arguments by convincing the Court that the putative insured had not met its burden of proving that the goods were packaged as an inherent part of the "loading or unloading" process.

• Wesco Insurance Company v. Regas.  U.S. District Court for the Northern District of Illinois.  Ross secured a summary judgment in favor of an insurer seeking a declaration that it had no coverage obligation under a claims made policy where subject claim was "related" to a prior claim that had already been reported to the insured's prior professional liability insurance carrier.

• TIG Ins. Co. v. Corbett, Circuit Court of Cook County, Illinois.  Circuit Court agreed with Ross's argument that an insured's having obtained written Release of liability from former client did not preclude application of "prior knowledge" language in professional liability policy.

• Westport Ins. Corp. v. Law Offices of Marvin Lundy, U.S. District Court for the Eastern District of Pennsylvania.  Despite insured's challenge to Federal Court Diversity Jurisdiction and arguments in favor of Colorado River abstention, Ross was able to secure a summary judgment of "no coverage" on behalf of client insurer.

Ross' opinion work and litigation efforts have often turned potentially expensive and protracted disputed into efficient and cost-effective resolutions and settlements, often through mediation.  Examples include: esolutions and settlements, often through mediation.  Examples of such settlements include:

• Insured agreed to dismiss insurer from state court suit in notoriously anti-insurer jurisdiction challenging cancellation of policy after Ross filed Motion for More Definite Statement on behalf of insurer.

• Five-figure settlement of a multi-million dollar insurer vs. insurer reimbursement action wherein the underlying claim alleged the abuse and neglect of several siblings and the death of another.  Ross successfully combined an exclusion in a Social Work Liability Coverage policy with aggressive prosecution of a declaratory judgment action into a settlement that was less than the estimated cost of litigating the coverage issues through summary judgment.

• Low seven-figure settlement of complex construction defect case in unfavorable northwest US jurisdiction under a Commercial General Liability "Wrap Policy" wherein named insured general contractor's tactic was to compel insurer to incur millions in defense costs by suing all of the enrolled subcontractors.

• Settlement of construction defect coverage suit against insurer in southeastern US jurisdiction for less than one half of insured's claim through combination of coverage arguments and pressure on home warranty company

Ross is an ordained Deacon n the Ukrainian Greek-Catholic Church, and Chairs the Catechetical Commission of its Chicago Eparchy.

View All Attorneys »

Contact:

300 South Wacker Dr., Suite 3250

Chicago, Illinois 60606

Phone: 312-466-7263

Email: Ross.Smyk@ruberry-law.com

Practice Areas:

• Insurance Coverage Analysis and Counseling
• Insurance Coverage Litigation
• Insurance Bad Faith
• Commercial Litigation

Education:

• J.D., Rutgers University, 1997
• B.A., University of Illinois, 1993
• Certificate in Theology, St. Paul University, 2010

Recognition:

Ross is recognized as a Super Lawyer® in the area of Insurance Coverage.

Admissions:

• State of Illinois
• U.S. Court of Appeals for the Third Circuit
• U.S. Court of Appeals for the Fourth Circuit
• U.S. Court of Appeals for the Fifth Circuit
• U.S. Court of Appeals for the Seventh Circuit
• U.S. District Court for the Northern District of Illinois
• U.S. District Court for the Central District of Illinois
• U.S. District Court for the Southern District of Illinois
• U.S. District Court  for the District of Colorado
• U.S. District Court for the Southern District of Indiana
• U.S. District Court for the Eastern District of Michigan
• U.S. District Court for the Western District of Michigan
• U.S. District Court for the Northern District of Texas
• U.S. District Court for the Western District of Texas
• U.S. District Court for the Eastern District of Wisconsin
• U.S. District Court for the Western District of Wisconsin